Law in Contemporary Society

Vested Interests and the Perpetuation of American Aristocracy: Capitalism, the Courts, and Criminal Justice

Capitalism and It's Consequences

The criminal justice system is most effective at thwarting social mobility. For the marginalized populations, the criminal justice system works to impede progress through incarceration. For the privileged, prison is a means of social control, and regulating socially undesirable populations. To preserve socioeconomic hierarchy, America employs capitalism and the criminal justice (specifically the prisons and courts) system as tools to combat an equitable allocation of resources and the end of segregation. The 21st century practice of discrimination is much more subtle than previously, but achieves similar effects. In a country where the concepts of equality and liberty are so central to its’ fundamental principles, in practice, America is far from the land of the free.

The free market, ( or scheme in which economic decisions are based on market conditions and limited government regulation) helps keep those with resources in positions of power, and simultaneously leaves marginalized groups with such limited opportunities, that entering the criminal justice system is almost inevitable. When this fact is combined with the conservative nature of the nation’s courts, it is no surprise that the country continues to have a criminal justice system wrought with injustice.

The American criminal justice system, generally made up of the law enforcement officials, prosecutors and the courts, and the prison system, is as effective at controlling minority and poor populations, as the free-market is at perpetuating socioeconomic hierarchy within the country. With only 5% of the world’s population, and 25% of the world’s prisoners, the United States has the highest incarceration rate in the world, along with the highest costs of incarceration, at close to $40 billion annually (Vera Institute of Justice Report). When the costs of courts and various police forces are added, the total adds up to $147 billion a year. This country also has one of the largest “wealth gaps”, or unequal distribution of assets among residents, as compared to other developed countries. In America, the richest 10% of the population controls 2/3 of Americans’ net worth, a key indicator of wealth (Levy Economics Institute). This correlation demonstrates the irony in America’s claim as the home of the “free”. It is no coincidence therefore, that the incarceration figures mirrors this nation’s wealth distribution, as the top 20% of the nation owns over 80% of the wealth, while the bottom 20%, make up close to three quarters of prison population, with an overwhelming majority of inmates being black or Latino.

To maintain America’s social hierarchy, capitalism is necessary. Capitalism is socioeconomic segregation’s greatest ally, as it is a subtle way of depriving groups the access to resources necessary to realize the fruits of “freedom”. As stated in Gatson County v. United States, America has “systematically deprived its black citizens of the (educational) opportunities it granted to its white citizens . . . therefore it should be no surprise that ‘Impartial’ administration of criminal laws, penalties, and the privilege of freedom, when employed in real time serve only to perpetuate inequality.” The connection between access to resources and the likelihood of being incarcerated therefore are largely related to the number of opportunities an individual is afforded.

With diminished access to educational and other social capital, black and minority populations are largely relegated to either low wage employment or crime. The disproportionate level of blacks and minorities living in poverty and prisons across the nation does not come as a consequence of group deficiencies, but are a direct result of the persistent prevailing socioeconomic hierarchy. Those with less access to resources are both underrepresented in the nation’s elite colleges and in the boardroom, yet are overrepresented in the nation’s jails and prisons. Equality and opportunity in this country therefore doesn’t come cheap.

Courts as Preservers of Hierarchy

Whereas increasing the amount of social mobility in the country would help alleviate the burden that prisons place on the country, at current, courts are more likely to strike down laws aimed at increasing equality and social mobility as unconstitutional rather than support their efforts. For its purpose, the criminal justice system is incredibly efficient; prosecutors and police officers target which citizens are deserving of punishment, while judges work to secure the convictions. All of these actions are then sanctioned and reaffirmed by decisions of the courts, with appellate courts acting as the ultimate preserver of hierarchy and the status quo. The days of Congress using, and the courts recognizing, the commerce clause, legislation, or other federal means to dismantle social ails such as discrimination, see Heart of Atlanta Motel v. United States, are long gone. While Title VII of the Civil Rights Act of 1964 is still good law, its’ ability to combat the effects of de facto segregation is limited.

Supreme Court decisions are demonstrative of the ways in which the court acts more as an agent of conservation as opposed to one of change or progress. Over time the court has gradually rescinded on it’s effort to end segregation and the incidents of slavery following Brown v. Board. Given the gross disparity in wealth in this country along racial lines however, this fact is damaging for poor and minority populations. While clearly invidious decisions are outlawed, courts justify disparate treatment of the poor on the basis of segregation that is “de facto” as opposed to “de jure”. This principle has been sanctioned by the nation’s highest court when ruling on cases affecting the distribution of resources, notwithstanding that the effects of “de facto” segregation can be more damaging than “de jure” segregation, because it is unspoken and can more easily go unchecked, see Washington v. Davis (1976), and Parents Involved in Community Schools v. Seattle School District No. 1 (2007).

Unlike slavery or Jim Crow, the free market and the criminal justice offer a seemingly impartial means of preserving social hierarchy. These entities, once symbols of equality now act as a devastating force against it. The criminal justice system and capitalism have effectively commodified freedom, turning what was is described as an inalienable right into a luxury to be purchased by the privileged.

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.


Webs Webs

r7 - 14 Jan 2015 - 22:15:33 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM